CUB 68177

MAX TEITELBAUM, Umpire

This is an appeal by the claimant from a decision of the Board of Referees which upheld the Commission's determination that she had lost her employment by reason of her own misconduct and was therefore not entitled to benefits.

An initial claim for benefits was established for Ms. Lui effective May 28, 2006 (exhibit 2). One of the Records of Employment submitted in support of the application indicated that the claimant had been employed by Gateway Casinos Inc. from April 17, 1999 to May 28, 2005, at which time her employment was suspended pending an investigation by the Gaming Policy and Enforcement Branch (GPEB) (exhibit 4). In her application for benefits the claimant indicated that she had been suspended because she had been charged with a criminal offence and she was aware that she might be ineligible for a gaming license (exhibit 2-7).

The Commission contacted the employer who confirmed that Ms. Lui had been charged with a criminal offence and as a result she was unable to hold a Gaming License, which is a condition of her employment. Without it she would be unable to work for the Casino (exhibit 5).

Based on the information before it, the Commission concluded that the claimant's suspension from her employment was by reason of her own misconduct because she was not able to fulfill the requirements of her employment with Gateway Casinos. A condition of that employment was that she had to hold a gaming license and when she was charged with a criminal offence she was no longer able to fulfill that requirement. It therefore imposed a indefinite disentitlement to benefits effective May 29, 2006 (exhibit 8).

The claimant appealed to a Board of Referees on the grounds that she had not been fired by her employer and that she was innocent of the charges against her. The claimant attended the hearing before the Board with her son.

After hearing the claimant's evidence and reviewing the material on file, the Board of Referees dismissed Ms. Lui's appeal stating its reasons, in part, as follows:

In the case before the Board of Referees it is clear that the claimant was suspended from her employment because, having been charged with a criminal offence, she could no longer meet the requirements of her employment, that of being the holder of a valid and subsisting gaming licence.

The Board notes that there is ample jurisprudence demonstrating that losing a requirement of employment such as a driver's licence or, in this case, the gaming licence constitutes misconduct and precludes the claimant from receiving EI benefits.

The Board finds as fact that having been charged with a criminal offence and, as a result, being unable to hold a valid gaming licence as a term of her employment, she was suspended . Therefore, in accordance with the jurisprudence, the Board finds that the claimant's actions constitute misconduct within the meaning of the Employment Insurance Act.

Further, it is clear to the Board that the claimant has not met any of the relieving conditions as set out in section 31. Consequently, the Board finds that the claimant is not entitled to receive EI benefits.

The claimant now appeals to an Umpire on the grounds the Board of Referees erred in law and in fact in making its decision. In her letter of appeal to the Umpire, the claimant's representative relies on the Federal Court of Appeal decision in Meunier v. Canada (Employment and Immigration Commission), [1996] F.C.J. No. 1347 (F.C.A.) in support of her argument that the laying of criminal charges which have not been proven at the time of the separation from employment is not sufficient to establish misconduct.

This is an interesting case and I am satisfied that the Board of Referees erred in its decision. First, it should be noted that the claimant was disentitled to benefits pursuant to section 31 of the Act, which provides for disentitlement to benefits when a claimant is suspended from their employment by reason of their own misconduct.

The difficulty here is that the employer has exercised a discretion in suspending the claimant's registration based on the fact that the claimant has been criminally charged with offences that the employer deems to be very serious. The fact is until she is convicted, she could have continued to hold her registration. But the employer appears to have made a pre-judgment concerning the claimant's guilt or innocence.

This approach appears to be contrary to what the Federal Court of Appeal has said in Meunier (at paras. 11 and 12):

In order to establish misconduct such as is penalized by section 28, and the connection between that misconduct and the employment, it is not sufficient to note that criminal charges have been laid which have not been proven at the time of the separation from employment, and to rely on speculation by the employer without doing any other verification. The consequences of loss of employment by reasons of misconduct are serious. The Commission, and the board of referees and the umpire, cannot be allowed to be satisfied with the sole and unverified account of the facts given by the employer concerning actions that, at the time the employer makes its decision, are merely unproved allegations. Certainly, the Commission will be more easily able to discharge its burden if the employer made its decision, for example, after the preliminary inquiry had been held and, a fortiori, if it made the decision after the trial.

We therefore find that the Commission failed to discharge the burden of proving the applicant's misconduct with the meaning of section 28 of the Act, either before the board of referees or before the umpire.

In fact, the claimant was, on March 26, 2007, found to be not guilty.

As a result of the decision in Meunier and, more particularly because of the claimant's acquittal, the decision of the Board of Referees dated August 14, 2006 is set aside and the claimant's appeal is allowed.

Max M. Teitelbaum

UMPIRE

OTTAWA, Ontario
May 17, 2007